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Police v Mataupu [2020] WSDC 16 (23 December 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Mataupu [2020] WSDC 16 (23 December 2020)


Case name:
Police v Mataupu


Citation:


Decision date:
23 December 2020


Parties:
POLICE (Informant) v AILINI MATAUPU, female of Moataa Apia and Iva Savaii (Defendant)


Hearing date(s):
30th July 2020


File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata’utia Raymond Schuster


On appeal from:


Order:
The defendant is acquitted of all four charges for the reasons given above.


Representation:
R. Titi for the Informant

A. Lesa for the Defendant
Catchwords:
Insulting words – threats to kill –acquitted of charges.


Words and phrases:


Legislation cited:
Crimes Act 2013, s. 129;
Police Offences Ordinance 1961, s. 4(g);
Summary Offences Act 1981, s. 4(1)(a).


Cases cited:
Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91
Messiter v Police [1980] 1 NZLR 586;
Police v Sapolu [2020] WSDC 15.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


AND:


ALINI MATAUPU female of Moataa, Apia and Iva, Savaii


Defendant


Counsel: R. Titi for the Informant
A. Lesa for the Defendant


Hearing: 30th July 2020
Decision: 23rd December 2020


Reserved decision

  1. The defendant is charged with two (2) counts of insulting words pursuant to section 4(g) of the Police Offences Ordinance 1961 (hereinafter referred as “POO1961”) and two (2) counts of threats to kill pursuant to section 129 of the Crimes Act 2013 (hereinafter referred as the CA2013).
  2. The charges are as follows:
  3. Section 4(g) of the POO1961 stipulates:
  4. In order to establish insulting words, the prosecution must prove:
  5. Section 129 of the CA2013 stipulates:
  6. The elements for a charge of threat to kill are:

Judges role

  1. Before I begin my consideration of the evidence and the law, it is important that I set out my role in a Judge Alone Trial. I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt.
  2. This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charge.
  3. I have considered all of the oral testimonies that has been placed before me given under oath.
  4. The evidence that I heard in this case featured various conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.
  5. It has been necessary for me to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.
  6. I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt.

Evidence

Elia Filimalo

  1. Elia is a 28 years old male of Laulii and Mauga. He was engaged in the work at Moataa to repair the house of the complainant in this matter sometime between March and May 2020. Elia testified that there was a time when he heard a woman next door being boisterous, loud and swearing. When the victim arrives with his wife, it is then that she verbally scolds her children and swears with words like “ufa, komo”. Elia estimates that the defendants house is about 3 metres from the fence that separates her house from the victim’s house. Elia testified that he notices when the victim is at his house, this is when the defendant is loud and swearing but does not happen when the victim is not around.
  2. Under cross examination, Elia agreed that the woman swears and scolds her children so was not sure whether she was swearing at her children or the victim. She normally sits in the front of her patio and just utters swear words but Elia did not know why. Elia said he saw the defendant every day when work was undertaken at the victim’s house. When put to Elia that if insulting words were spoken they were not to the complainant, he responded it was to the complainant as every time the complainant’s car comes in, he would hear the defendant say “ua afe aku le kaavale a ufa”. It was put to Elia that he never mentioned that in his evidence in chief which he agreed but gave no reason why.
  3. Upon re-examination, Elia was asked whether the defendant swore all the time to her children. He said no.

Maoga Oli

  1. Mr Oli is a 63 years old male of Leusoalii. He testified in the month of May he came to do work for Reverend Risati Palemene, the complainant, at his home at Taumeasina, Moataa. Oli testified that from the first day on the job, he heard the neighbouring defendant use coarse and insulting words all the time like “lou ufa, aikae, kao i se umu, kefe” and others. He usually observes the defendant swearing from in front of her house or inside her patio. Oli testified that only when the complainant comes to his property that the defendant’s voice would be heard.
  2. Under cross examination, Oli corrected his evidence that the work started in March not May. Oli was asked as to how many times the complainant left his house on the 12 May 2020 but he could not recall. Oli responded that they worked on 4 May 2020 but work was on and off and could not recall what days in May they worked on the property. However, he somehow recalls that they worked every day from 4 to 19 May.
  3. Oli agreed when put to him that he did not know whether the insulting words were addressed to the defendant’s children or the complainant. It was further put to Oli that he never mentioned to police that the defendant said “kao i se umu”. Oli responded that he did along with the other words but did not know why it was not in his statement.

Apisaloma Nimarota Mauga

  1. Mauga is a 25 years old male of Leusoalii. His uncle is Maoga Oli and was working for Oli in renovation work for the complainant’s house at Moataa. Mauga recalls that it was the first week of March 2020 they started work. He testified that as they were working inside the house, he would hear the defendant swear to her children but it would really be to the complainant and his wife. This only happens when the complainant returns with his wife from doing an order for the works. The defendant would say “alu aku foi le kaavale a le ufa lale ma le kefe”. There was no evidence that the complainant actually heard any of these words.
  2. Mauga further testified that there was a day that the complainant was working on the fence when Mauga heard the defendant say “maimau le makou kaimi e fai ai le galueg. O le faifeau o le maile, gaoi, fia fai mea”. The defendant then smurks and does a “cheehoo”. Mauga says the defendant usually does this when the complainant was leaving the property.
  3. Under cross examination, it was put to Mauga that he never made a statement to Police that the defendant said “ufa, kefe” to the complainant whenever he comes to see the works. Mauga responded that he did tell that to police. Mr Lesa put Mauga’s written statement to him dated 5 July 2020 and Mauga confirmed that those words were not in his statement. Mauga testified that the complainant took him to police to make a statement and picked him up again. Mr Lesa further put to Mauga that what he heard was the defendant swearing to her children. Mauga responded that when the complainant’s car arrives, the defendant would tell her children “sogi le ulu i le sapelu”. Mr Lesa put to Mauga those words were never in his written statement. Mauga responded that he heard this and told police but did not understand why it was not in his written statement. Mr Lesa put to him if it was because she never said those words as to the reason why it was not in his written statement. Mauga maintained his response.

Tagaloa Solomona

  1. Solomona is a 42 years old male of Ulutogia, Aleipata. He works for the Congregational Christian Church at John Williams Building as an electrical maintenance man. Solomona testified that sometime in April or May 2020, he went with Solomua Siaosi to do work for the complainant at his house at Moataa. He recalls the complainant being rushed to hospital as he collapsed in the bathroom. As he was locking the gate to the complainant’s home, he heard a woman from next door say “loka faalelei le kakou pa. Ia, oo e ave i le falemai le kou kama kalosia e avaku ma alu aku ai a”. Solomona recalls that she was smirking while making that statement. Mr Lesa did not cross examine Solomona.

Solomua Siaosi

  1. Siaosi is a male from Faga, Savaii and lives at Vaitoloa, Apia with his wife and children. Siaosi is an electrician by profession and went to the complainant’s house to fix the air condition. He recalls the complainant collapsing and the ambulance was called to transport him to the hospital. As they were carrying the complainant out to the ambulance, he testified that he heard the defendant standing inside her land and say “avaku ma avaku ai a ma uma ai a”. The complainant was unconscious the whole time. As he was closing the gate, the defendant called out again “avakuga lava lega e uma ai a”. Mr Lesa did not cross examine.

Risati Ulu Palemene

  1. Palemene is a 69 years old male and a retired minister of religion. He has returned to Samoa since the beginning of 2020 from his ministry in Melbourne. He testified that he is related to the defendant who was married to his late half-brother. He recalls the 12 May 2020 at about 6am, he told his wife that he was going for a walk. He returned at about 8am and got ready to go to the hospital for his usual blood pressure check-up as he had a kidney transplant.
  2. However, he heard the defendant while she was standing outside her porch about 5 metres away say “kefe, ufa, mea aiga gaoi, vaavaai ai lou afu, fia fai mea, gogoa le oki, aiga gaoi, o lou afu lea o le gaifi lea kipi lou ulu” while she was “faapao mai le sapelu”. He said that the defendants conduct started after the court hearing on the 17 February 2020 when he was awarded $150,000 against the defendant. He further testified every time his car turns in to his property all he hears is “kefe ma le ufa”. This has caused mental stress on him.
  3. Under cross examination, it was put to Palemene that the defendant never said these words to him. Palemene responded that she did and started earlier than May but after 17 February 2020. Other times the defendant would put a stereo outside her patio with the speakers facing towards his house. Palemene further stated that the defendant apologized in Melbourne and agreed to pay AUD$50,000 to settle the dispute.
  4. However, it was further put to Palemene that all the defendant’s children have returned overseas leaving the defendant to deal with the civil claim. But the defendant could not go as he, Palemene, had obtained a departure prohibition order (DPO) against her. Palemene agreed with that. Mr Lesa further put to Palemene that the civil matter is not finalized and he has used the DPO and these charges to force a settlement out of the defendant. Palemene said “he did not think so”.
  5. As to the events on the 12 May 2020, it was put to Palemene that the defendant never spoke to him that day nor did she threateningly wave a machete towards him. Palemene rejected the defendant’s denial and further said that this was not the first time his witnessed the defendants conduct especially when they are leaving or returning home. Mr Lesa put to him that the defendant never said “o lou afu a gei”. Palemene responded that the defendant said “afu a lea, gaoi, makiva elo”. He also confirmed that their relationship with the defendant was not good.
  6. Upon re-examination, Palemene confirmed that there was a connection between the civil case, the DPO and these charges against the defendant. However, he did not elaborate what the connection was.

Defendants case

  1. The defendant elected not to give evidence.

The Law on insulting words

  1. The historical developments as to the law of insulting words and behavior in Samoa has been extensively canvassed in Police v Sapolu [2020] WSDC 15 and will not be repeated here. The essence of section 4(g) of the POO1961 is the protection of public and private order. This was determined in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 where section 4(1)(a) of the Summary Offences Act 1981. Except for the specific element of “a public place”, the New Zealand legislation is the equivalent of the Samoan legislation and applied in the case of Police v Sapolu.
  2. As indicated above, the commission of an offence under section 4(g) POO1961 need not matter where the offence is committed, whether public or private. The facts before this court show that the alleged offence was committed on private property. The defendant and the complainant reside side by side on separate private land adjoining each other. The prosecution’s evidence show that in all of the instances of insulting words and threats to kill, they occurred whilst the defendant was within her own property. The prosecution witnesses were at the material time in respect of their own individual evidence located on the complainant’s property. The complainant observed the defendant being about 5 metres away when she was uttering insulting words and threats to kill. The other five (5) witnesses state that the defendant was either in her patio or just outside her house when she was uttering insulting words.
  3. Elias CJ in Brooker held that there must be an objective tendency on the part of the speaker that the words spoken had a reasonable prospect to disrupt public order:
  4. As to the element of “breach of the peace”, Gummow and Hayne JJ concluded in Coleman and Power:
  5. The law therefore is that not only the words must be insulting, it must be more than just causing annoyance or insult. Disorderly conduct must be:

It must be of such an intrusion and interference to the rights of others sufficiently serious to warrant the intervention of the criminal law (Messiter v Police [1980] 1 NZLR 586) and that it had the tendency to disrupt public (Brooker) or private order by provoking unlawful physical retaliation or were reasonably likely to do so (Coleman).

Discussion

  1. Charge FVCD587/20 alleges the defendant uttered swear words “kefe, ufa, aikae” between 29 February and 13 May 2020 whereby a breach of the peace may be occasioned. Elia testified he heard the defendant say words such as “ufa, komo”. However, he was not sure whether the defendant was saying “ufa, komo” to her children or to the defendant. He notices though, whilst under cross examination, that every time the complainant comes home, the defendant will say “ua afe aku le kaavale a ufa”. There is no evidence that the complainant heard this nor that Elia told the complainant about it. Because of the way the charge is worded over a particular period, there is no evidence as to what occasion the defendant used “ufa, komo” to her children to distinguish it from the defendant.
  2. Oli’s evidence is that he heard the defendant say “lou ufa, aikae, kao i se umu, kefe” during the period of 4 to 19 May 2020 when they worked on the complainant’s house. Like Elia, Oli cannot distinguish whether the defendant was referring to her children or to the complainant and on what occasion except for when the complainant returns home. But of the times the defendant returns home, there was no irrefutable evidence as to which occasion was the defendant saying these words to her children to be distinguished from the defendant.
  3. The defendant is not charged with the words “kao i se umu” but Oli accepts it was not in his written statement to police. The only other evidence of these words were from the complainant himself.
  4. Mauga testified that sometime in March, the defendant used the words “alu aku foi le kaavale a le ufa lale ma le kefe”, “maimau le makou kaimi e fai ai le galueg. O le faifeau o le maile, gaoi, fia fai mea” and “sogi le ulu i le sapelu”. Though he accepted under cross examination that he never mentioned in his police statement the words “ufa ma le kefe” and “sogi le ulu i le sapelu”, he insists they were said by the defendant. It was not clear whether Mauga meant that the defendant was talking to the workers or directing her remarks at the complainant.
  5. It appears from Mauga’s evidence that, if the words were said, they were not directed at the complainant although the complainant may be the intended recipient of the alleged words. There is no evidence that Mauga reported this incident which occurred sometime in March to the complainant.
  6. Solomona and Siaosi’s evidence are promoted by the prosecution as propensity evidence having probative value to the issue in dispute as to whether the defendant acted in a manner inconsistent with accepted behavior pursuant to section 4(g) of the POO1961. Although the prosecution submit that the defendants conduct has gone on for some time whilst the workers were present at the complainant’s premises, the evidence at this point cannot be distinguished between whom the intended recipient of the insulting words whether it was the complainant or the defendant’s children and whether this was just a matter of misunderstanding.
  7. The complainant testified after returning from his morning walk at 8am on 12 May 2020, the defendant sometime later uttered “kefe, ufa, mea aiga gaoi, vaavaai ai lou afu, fia fai mea, gogoa le oki, aiga gaoi, o lou afu lea o le gaifi lea kipi lou ulu” while she was “faapao mai le sapelu”. The incident of 12 May 2020 as recalled by the complainant was not corroborated by any of the other prosecution witnesses. Elia, Oli and Mauga’s evidence relate to the insulting words on occasions when either the complainant was not home or as he and his wife were returning in their car. As for the threatening words and threats to kill, only the complainant testified to such alleged conduct.
  8. The complainants evidence confirmed so far as the complainant is concerned that there is ill feeling between the complainant and the defendant. The complainant confirms when re-examined that the complaint and DPO are related to the civil dispute with the defendant. That being the only evidence, I accept that if the alleged insulting words were said, the history of the matter would rule out any inadvertent misunderstanding.
  9. I accept that the words “kefe, ufa” when expressed and emphasized in an explicit manner with the intention to hurt and/or insult someone would fall under the head of insulting words. There is no evidence that the defendant uttered the word “aikae” as charged. Given that there is no suggestion that the defendant has been misled or prejudiced in the defendant’s case, I exercise judicial discretion to amend information FVCD587/20 pursuant to section 93 of the Criminal Procedure Act 2016 and delete the word “aikae”.
  10. Mr Lesa submitted if the defendant uttered the insulting words alleged, it was not heard by the intended recipient being the complainant. Therefore, it could not have been an intention to bring about a breach of the peace. Respectfully, this is not correct. Hardie Boys J in Messiter stated:
  11. In Coleman, Gummow and Hayne JJ stated:
  12. It is clear that insulting words may be an offence even if not heard by the person or persons whom it was addressed but by other persons who hears the words uttered intending to provoke or are reasonably likely to provoke unlawful physical retaliation.
  13. In saying that, I find that the evidence of Elia, Oli and Mauga as to insulting words insufficient and doubtful to rely on with any degree of certainty for the reasons discussed above. I however accept the evidence of Palemene that the defendant did say the words “kefe, ufa” on 12 May 2020 notwithstanding the fact that there may be an ulterior motive in bringing the charges against the defendant.
  14. But that is not the end of the matter. The next question for the prosecution is to prove that the words were “sufficiently deeply or seriously to warrant the interference of the criminal law” (Melser v Police and affirmed in Brooker). Hardie Boys J in Messiter did not believe that every serious insult causing annoyance would constitute an offence and depend on the degree and circumstance of the conduct and words complained of.
  15. This is basically a private family dispute which seems to be related to property. It seems to have been around for some time particularly when the defendants husband (the half-brother of the complainant) passed away. The complainant described the alleged conduct of the defendant as “e fai soo” and this charge was laid on 14 May 2020. The direct and circumstantial evidence would lead to several inferences. Firstly, that the civil court matter and the DPO caused the defendant to be hostile to the complainant. Secondly, that the complainant has used the intervention of the criminal law to procure an expeditious result to the civil matter. Thirdly, that the defendant may be just bitter and has taken the course to annoy the complainant much less to provoke him to a physical retaliation.
  16. Taking into account the history of the dispute, the words may be insulting in the sense that they may be ill mannered or bad taste or cause annoyance even serious annoyance, this is not sufficient to constitute the offence. As Elias CJ stated in Brooker, the purpose of the offending provision is to protect public (and in Samoa, private) order:
  17. There is no evidence that there was either an “... intention to provoke unlawful physical retaliation, or was reasonably likely to do so” as expressed in Coleman. There is no evidence of any disruption to public or private order or the reasonable likelihood of such a disruption occurring. The evidence suggests that the witnesses, though may be annoyed, basically ignored the defendants “rantings” particularly the complainant.
  18. Even if I were to find that the words were sufficiently serious in the circumstance, the fact that there was no public or private disruption of order or the reasonable likelihood of one arising (or else termed “where a breach of the peace may be occasioned”) would bring about the same result.

Information FVC D590/20

  1. As to second charge of insulting words FVC D590/20, there was no evidence to substantiate the charge in the compilation of the words formulated “ia ea magaia, lou meaola fia fai mea, lea laa fai au pisigisi ii pe la sau fagua, makiva elo faomea, magao kupe, o le a e vaai iai le mea kupu i lou fia fai mea”. Palemene’s sworn testimony stated the defendant saying:

The only words that are consistent are “fia fai mea”. I have decided not to exercise a section 93 CPA amendment as the evidence does not support such action to be necessary and just.

The law on threat to kill

Information FVC D88/20 and FVC D589/20

  1. Though the two (2) charges are brought pursuant to section 129 of the CA2013, it is worded in accordance with section 4(g) of the POO1961 using the term “threatening words”.
  2. The prosecution must prove whether the defendant made a threat to kill the complainant. The complainant is the only witness with evidence of this offence which happened on 12 May 2020: “o lou afu lea o le gaifi lea kipi lou ulu” as the defendant was running the machete along the fence. The charge on the other hand states: “vaai i ou alu aku kipi lou ulu i le gaifi” and “sala lou ulu i le gaifi” respectively. There is no evidence to distinguish the one information from the other except they basically mean the same thing. Although Palemene testified “ua fai soo”, it was not clear whether he meant the threatening conduct, the insulting conduct or both. It is open to infer from the two charges that they may both be referring to the same incident. This is a real difficulty with insulting words and threats to kill charges alleged done over a period of time.
  3. Oli testified that they worked from 4 to 19 May 2020 which means he was present on the 12 May. However, he did not corroborate this evidence of a threat from the defendant on that day or any other day. In Elia’s, Oli and Mauga’s testimonies as insulting words, the defendant’s behavior seems associated with when the complainant is at home especially when just arriving in the vehicle. There was no evidence that the defendant heard any of what the defendant said nor that the witnesses reported such conduct or words to the complainant.
  4. For the first element, I must be certain that the defendant ran a machete along the fence and threatened the complainant. I find that I am not satisfied as to the evidence in support of this charge given the reasons above and the defendant must be acquitted of both charges. But if I am wrong, that is not the end of the matter.
  5. The second element is whether I am sure that by running the machete along the fence and uttering the words “vaai i ou alu aku kipi lou ulu i le gaifi” and/or “sala lou ulu i le gaifi”, the defendant threatened to kill or do bodily harm against the complainant. I find at law that such words and conduct is a threat to kill or do bodily harm.
  6. The final element is whether I am sure that the defendant intended for the complainant to take the threat seriously. There was no evidence from the complainant directly or indirectly suggesting that he took the defendants threat to kill seriously or that he could tell that defendant was serious about her threats. The complainant testified that he was stressed, anxious and felt depressed about the defendants behaviour but tolerated for three months. He even brought the village matai’s to help. This evidence suggests mere annoyance but does not support a suggestion that the complainant took the threats to kill, if there were threats, seriously or that it could be carried out from his elderly sister in law.
  7. I therefore find that the prosecution have not proven the final element of the charge and the defendant must be acquitted of both charges.

Conclusion

  1. The defendant is acquitted of all four charges for the reasons given above.

MATA’UTIA RAYMOND SCHUSTER
DISTRICT COURT JUDGE


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